Abbott Opinion Murky on Plastic Bag Bans

Do plastic bag bans and restrictions in cities like Austin, Laredo, and Brownsville violate Texas law?

According to an opinion issued by Attorney General Greg Abbott's office handed down on Friday afternoon, that depends on how you define two phrases: "container or package" and "solid waste management."

Opinions on Texas law from the attorney general's office are not binding, though they do carry weight statewide and could make other cities reconsider possible bans or restrictions on the use of single-use bags. Abbott said outright bans on single-use bags, which have been passed in in Austin and Laredo, are legal if they weren't passed for the purpose of "solid waste management," which isn't clearly defined by state statute.

When it comes to restrictions on single-use bags, like Brownsville $1 fee-per-bag or Dallas' recently passed nickel-per-bag fee, Abbott has a narrower view: He doesn't think Texas law allows fees for bags at all, though it's still not totally clear if single-use bags are indeed "containers or packages" in the law his office refers to.

The Texas law in question, from the state's Solid Waste Disposal Act, was added to the Health and Safety Code in 1993. It says that cities can't "prohibit or restrict, for solid waste management purposes, the sale or use of a container or package in a manner not authorized by state law ... [or] assess a fee or deposit on the sale or use of a container or package."

That raises two questions: What's a "container or package?" And what does "solid waste management" mean?

For the purposes of plastic bag bans and fees, that isn't clear. Brian Sledge, an environmental attorney and lobbyist in Austin, said the 1993 law stemmed from backlash against new packaging that food companies were using. The packaging mixed recyclable material, like aluminum, with nonrecyclables. Cities in states like California banned the packaging, causing the companies to head to states like Texas and ask for legislation that would avoid the same problem.

"Plastic bags weren't really on the radar screen" in 1993, said Sledge. "It's hard to think that a bag's not a container. It holds stuff. But I don't think that is the intent of the statute."

Abbott's opinion also says "a court is likely to conclude that a single-use plastic bag is a container." But only the courts or the Legislature can clarify that with any finality. (Lawmakers have also tried to eliminate any ambiguity by prohibiting single-use bag bans, with their latest attempt at a "Shopping Bag Freedom Act" coming during the 2013 session. But the legislation did not make it out of committee.)

When it comes to solid waste management, things are even murkier. The Health and Safety Code does explicitly say that solid waste can include "rubbish," which can consist of "plastics," Abbott's opinion notes. But "management" is a more difficult term. "It is conceivable that a city adopting an ordinance that prohibited single-use plastic bags would do so to control the generation of solid waste, which single-use plastic bags will most likely become," the opinion points out.

But Abbott also notes that some cities' bans list other reasons. Freer's ordinance, for example, says that the bags "can end up in the ranch land." Laguna Vista's ordinance points out that plastic bags create "potential hazard to marine life." It's beyond the scope of his office, the opinion says, to figure out whether these cities also adopted their bans for solid waste management purposes.

That puts the city of Laredo, which banned single-used bags this summer after heated debate, on firm legal ground, said the city's attorney, Raul Casso. He said Laredo's goal was to get rid of litter in the Rio Grande.

"They’re just saying, if you’re going to be doing stuff like this to manage solid waste programs or facilities, forget it," he said. "Our ordinance does not involve that."

But environmental attorney Erich Birch is not so sure. "Reading between the lines, if a city could convince a court that the entire reason they regulated it was, for example, for wildlife protection, then maybe it would stand up," he said. But if there was even discussion during city council meetings or public hearings about a potential benefit for managing things like landfills, "then they're stepping into the solid waste management arena."

The Texas Retailers Association did not respond to an emailed request for comment Friday afternoon. That group has strongly opposed bans or restrictions on single-use bags and had also sued Austin over its bag ban, though it later withdrew the petition. The group also prompted state Rep. Dan Flynn, R-Van, to ask Abbott's office for an opinion in March.

Austin's city attorney's office did not respond to calls seeking comment. Allison Bastian, assistant city attorney in Brownsville, said she had not had a chance to review Abbott's opinion but that the $1-per-bag fee had been good for the city.

Brownsville was the first city to restrict single-use bags in Texas, when it adopted the ordinance in January 2011.

“We did it because of environmental concerns,” Bastian explained. In the Rio Grande Valley, plastic bags would often interfere with waterway channels and drainage systems, known as resacas. “A lot of resacas were getting clogged."

Since the ban, Brownsville residents have often commented to city officials how better it looks compared with nearby towns that still combat plastic bag trash.

“You don’t’ see them hanging from trees, accumulating in fields,” Bastian said. “I work downtown, and I don’t see the plastic bag tornadoes like I used to.”